from the that's-one-way-to-put-it... dept

Attorney General Holder raised some eyebrows earlier this week when answering a question about his Justice Department's notorious crackdown on leaks, and by extension the press, most notably saying this about its notorious pursuit of New York Times reporter James Risen, while claiming the DOJ did nothing wrong:

If you look at the last case involving Mr. Risen, the way in which that case was handled after the new policies were put in place [is] an example of how the Justice Department can proceed.

The District Sentinel aptly took apart most of Holder's comments, and they also provoked a stinging rebuke from Risen himself last night on Twitter. However, I think the facts of Risen's case deserve a closer look to see just how unbelievable Holder's statement is.

Let's recap: since the very start of the Obama administration (read: for SIX years), the Justice Department was trying to subpoena James Risen. It fought for him to testify at a grand jury of CIA officer Jeffrey Sterling, which he refused to do, and when they were rejected by the court, it fought to have him testify in Sterling's trial. They fought Risen on this all the way up to the Supreme Court.

Also, keep in mind, while the "new" media/leak guidelines that Holder bragged about are certainly a step forward, the old guidelines that applied to Risen's case should have protected him just the same from the start—if they were actually enforced. He doesn't get to pretend the preceding five and a half years didn't happen just because he stregthened the Justice Department's rules after public protest.

The case cost Risen and his publisher an untold fortune in legal fees, dominated his life, took away from time he could've spent reporting, and likely cost the taxpayers millions of dollars.

Along the way, we found out that the government had spied on virtually every aspect of James Risen's digital life from phone calls, to emails, to credit card statements, bank records and more. (By the way, we still have no idea how they got this information. That's secret.)

The Justice Department argued in court that not only was there no reporter's privilege whatsoever -- either embedded in the First Amendment or in Fourth Circuit common law -- but also that journalists protecting sources was analogous to protecting drug dealers from prosecution.

After all this (along with a large public outcry), the government decided to drop its pursuit of James Risen. And of course were able to easily convict Jeffrey Sterling anyways, using evidence gleaned from digital surveillance.

Now the Justice Department wants a pat on the back. While it is unequivocally excellent news that Risen will not be forced into jail, the DOJ's behavior in this case was and still is deplorable. It has done damage to long-term press freedom rights that will be very hard to undo, and the idea that this should be looked at as a "model" for future leak investigations is troubling to say the least.

from the celebrating-fair-use dept

Jon Stewart's announcement on February 10 that he will be retiring from The Daily Show later this year has been met with tributes to his comic genius and his impact on political discourse. But these tributes have overlooked the legal doctrine that has enabled Stewart to be so effective: fair use. (This is my second post this week about the importance of fair use to popular culture; on Tuesday I wrote about how the Fifty Shades of Grey trilogy was first written as fair use-dependent fan fiction based on the Twilight vampire series.)

Stewart's most powerful critiques result from his juxtaposing clips of politicians and commentators on news broadcasts to demonstrate their hypocrisy. He'll contrast a clip of a Fox News commentator expressing outrage at President Obama taking a particular action with a clip of the same commentator praising President Bush for taking a similar same action. Stewart also uses montages of clips from CNN and other news networks to demonstrate their simultaneously sensationalistic and superficial coverage of disasters and trials. But for fair use, Stewart's rebroadcast of these clips would be willful copyright infringement, subject to statutory damages of up to $150,000 per clip.

Jon Stewart's heavy use of clips for the purpose of humorous political criticism has inspired other comedians to emulate him, most notably his former "correspondents" Stephen Colbert on The Colbert Report and John Oliver on Last Week Tonight. Stewart's reliance on clips no doubt has also encouraged the growth of the remix culture online, where individuals combine clips of preexisting works for the purpose of political or artistic expression.

Stewart's reliance on fair use likely made him progressive on other copyright matters. He supported fans distributing excerpts of The Daily Show online, he questioned the position of Viacom (the owner of Comedy Central, the channel that carries The Daily Show) in its litigation with YouTube, and he opposed SOPA.

Additionally, Jon Stewart's fair use of clips has had a positive impact on policymakers. The Daily Show is perhaps the easiest example to give lawmakers and their staffs of the importance of fair use. A reference to The Daily Show makes them instantly understand how fair use functions, in Supreme Court Justice Ruth Bader Ginsburg's words, as one of the copyright law's built-in accommodations to the First Amendment. Further, The DailyShow demonstrates clearly that large media companies (e.g., Viacom) rely on fair use.

Jon Stewart has not announced what he will do after he leaves The Daily Show. But it is hard to imagine that the greatest practitioner of fair use in this generation will not at some point embark on another venture that employs fair use.

from the Judge-Streisand-presiding dept

Some infighting has broken out at Baylor University. A tangled web of impeachment proceedings and sketchy behavior has resulted in some unflattering coverage of a lawsuit filed against the internal vice president of the court -- whom critics claim is failing to uphold her duties and damaging the morale of the student government.

The Baylor University Student Court (hereinafter “the Court”), acting in reaction to the aforementioned case, yet to be heard in trial, hereby commands the following:

(I) That no party to the matter aforementioned, plaintiff or defendant or their respective counsel, shall make contact with any member of the Court except:

For PROCEDURAL questions, the party shall contact the Clerk of the Court, Charlotte Weston; and

For SUBSTANTIVE questions, the party shall contact the Chief Justice of the Court, Cody Coll.

Furthermore, (II) No member of the press shall make intentional contact with any member of the Court regarding the case aforementioned EXCEPT the Chief Justice of the Court, Cody Coll, who shall serve as the SOLE SPOKSPERSON [sic] FOR THE COURT.

In other words, there will be very minimal questioning of our position/authority, and SPOKSPERSON Cody Coll will be the main filter between your impertinent questions and our answers (if any). If you want to play Junior Investigative Journalist and ask difficult/embarrassing questions that don't fall into the procedural/substantive divisions, you will be held in contempt of court and referred to the dean for further punishment. Here's Coll justifying the court's move.

“It’s within the purview of the chief justice to instruct the justices to not communicate with the media,” he said. “It’s also within the jurisdiction of the court to issue an order such as the one that was issued yesterday.”

Sure, it may be in the "purview" of the chief justice. But you know what else it is? Stupid. Pure, unvarnished stupid.

The internal wranglings of a university's student government will have little to no bearing on anything happening outside of its sphere of influence. This "shut up, the court explained" gag order isn't likely to trigger a federal First Amendment lawsuit. And, yes, this whole thing somehow ties into the 2nd Amendment (no, seriously), perhaps the most contentious of our amendments and the one virtually guaranteed to provoke only the most extreme arguments from both sides.

So, it's mainly Baylor's teapot tempest, but those who issued this half-assed gag order will be real adults one day with real jobs, possibly in the public sector where they could do some real damage if these irrational urges aren't loudly and swiftly discouraged.

Even if the order is "legal" in the context of the Baylor student body court system, that doesn't make it any less ridiculous. A gag order like this, issued on the heels of negative coverage, may as well have ordered EVERYONE to talk about the student court's failures LOUDLY and AT LENGTH and ALL OVER THE INTERNET. If the court had possessed even a little common sense and foresight, it would have handled this with the same "nothing to see here" aplomb it has handled every other courtroom battle it has dealt with to this point. Baylor's student court may have certain powers, but it can't demand the student press cater to its whims. Even a self-contained government has checks and balances, and here we see this incident is nothing more than a government entity attempting to route around the pesky force of accountability known as "the public."

from the among-the-disrupted dept

If there's one overarching theme of this blog for the 16+ years that it's been around, it might be "disrupted industries behaving badly." It seems to be a fairly constant theme. And the news business is no exception. And, boy, have they been bitching and whining about it a lot lately. If you want to see the quintessential example of clueless self-pity, it has to be Leon Wieseltier's recent NY Times whinefest, Among the Disrupted. Wieseltier is definitely among the disrupted, having recently lost his longtime job at the New Republic as part of a publication-wide freakout over the fact that the new management (led by Facebook co-founder Chris Hughes) wanted to try to make the magazine a bit more relevant to the younger generation. It is a paean to elitism, eloquently insisting that without the cultural elite guiding the way, the digital riffraff online will never understand the true cultural meaning of anything.

A similar piece appeared last week, in the SF Chronicle, by Jon Carroll, in which he does his best impression of telling the digital kids to get off his lawn, while trying to come to terms with the fact that those darn kids today just don't really trust or believe in the "real media" any more (though he seems to use a rather arbitrary description of who is good -- Al Jazeera -- and who is crud -- Fox News).

But to see the truly hysterical old media in action, you need to just pay attention to the collective freakout over the White House's decision to let three YouTube stars interview President Obama. It quickly became an easy punchline for sneering elites that this was somehow "beneath the dignity" of the White House. Much of the focus was on one of the three, GloZell Green, a comedian who does funny stuff on her YouTube channel -- including silly challenges, like (the one that everyone keeps bringing up) taking a bath in cereal.

Hank Green, one of the other two YouTubers who took part in the interview has hit back with an absolutely fantastic post explaining why it totally makes sense for the White House to have such YouTubers interview the President, rather than the mainstream media. And it's because most people don't think the mainstream media is legitimate any more. It's lost its legitimacy, because the facade of what the news does has come down. The traditional news report -- what Jay Rosen has repeatedly referred to as "the church of the savvy" or "the view from nowhere" -- focuses on playing up their own connections and insiderness, rather than honesty and earnestness.

But these YouTubers, by contrast, are real -- and people trust them and view them as legitimate because they're real. As Green writes:

I think sub-consciously they understand the really terrifying thing here. Glozell and Bethany and I weren’t put in a chair next to President Obama because we have cultivated an audience. We were put there because we have cultivated legitimacy.

The source of our legitimacy is the very different from their coiffed, Armani institutions. It springs instead (and I’m aware that I’m abandoning any modicum of modesty here) from honesty. In new media this is often called “authenticity” because our culture is too jaded to use a big fat word like “honesty” without our gallbladders clogging up, but that’s really what it is.

Glozell, Bethany and I don’t sit in fancy news studios surrounded by fifty thousand dollar cameras and polished metal and glass backdrops with inlayed 90-inch LCD screens. People trust us because we’ve spent years developing a relationship with them. We have been scrutinized and found not evil. Our legitimacy comes from honesty, not from cultural signals or institutions.

And with young people having no reasons to trust those cultural signals that we older folks were raised with, this is the only thing that works for them anymore. Our values and interests mesh with theirs enough that they’ve come to trust us. They trust us to make content that they will enjoy and they trust us to be the kind of people they can look up to. People who betray that trust risk losing everything that they have built.

What's amazing is that the Carroll article I mentioned earlier actually is an almost perfect mirror of Green's article in some ways. They both mock the fakeness of Fox News. And they both admit that people now trust their friends and social media contacts more than such news providers. But in Carroll's world, this is dangerous and a sign of the people today not wanting "content" but just snippets:

People don’t want content anymore. They want diversion, and there’s plenty of that. Even the occasional discussion of public issues is diverting; have an opinion, post and go. The formats do not encourage complex discussion, and wit is prized above knowledge.

People don’t care what the media say. They care what their friends say; they get what information they get from people just like themselves. They don’t buy the new, friendlier one-to-many model; it’s still just strangers babbling. You know your friends; you trust them. If they say a restaurant is good, it’s good. If a media site says it, who cares?

Of course, it’s not as simple as that. We’re in a transitional phase; old-media outlets may be shrinking but they still make a lot of money, while the business model for digital publication is a work in progress. But the trends are clear. Objective reporting is now considered impossible, so why bother? And equally: Why bother with complexity?

It really seems like Carroll and Green are discussing the same phenomenon, but from very different perspectives. Green is surfing the wave, while Carroll is being dragged under by it. And, frankly, Carroll is wrong. People absolutely do want "content." They crave it. What they want is honest content -- and that's the point that Green is making. They care what their friends say because that's honest, and as even Carroll admits in his piece, the media doesn't do that very well.

But from honesty can come complexity. And investigative reporting and a variety of other things. Carroll argues that this new wave has killed off such investigative reporting, but that's ridiculous and wrong. He whines about crusaders, but it's those crusaders who have taken a deep interest in key issues that allows them to do the investigative reporting that needs to be done -- and to do it in a manner that people trust. Because it's real. Glenn Greenwald isn't a traditional investigative reporter, but he's built up a mountain of trust, because his own personality shines through in everything that he does. Agree with him or not, no one can deny that Greenwald is quite real and unlike the interchangeable heads seen on cable news. And the same is true for other "real" figures that the traditional media likes to mock, like Jon Stewart or Jon Oliver. They take different paths, but they really connect with their viewers. And it's the same for the YouTubers that the White House invited in.

The legacy media players may not like it, but mainly because it rips down the facade they've been living behind for so long. The facade that pretends they're all about "objective news reporting" when the reality has long been that they're more focused on being seen as important. The gatekeepers of the news. But the news has no more gatekeepers, and the public seems to prefer honesty, rather than made up objectivity. The view from nowhere now means that many people (especially younger people) see those newscasters as being nowhere at all. And that's why it completely makes sense for the White House to reach out to those people who are real, who have built up trust, and who will continue to be real, even if they ask questions that the mainstream media considers beneath them.

from the bad-and-dangerous-precedent dept

We've written a few times about the ridiculous case against Barrett Brown, a journalist who took a deep interest in Anonymous and various hacking efforts. As we noted, a key part of the initial charges included the fact that Brown had organized an effort to comb through the documents that had been obtained from Stratfor via a hack. The key bit was that Brown had reposted a URL pointing to the documents to share via his "Project PM" -- a setup to crowdsource the analysis of the leaked documents. Some of those documents included credit card info, so he was charged with "trafficking" in that information. Brown didn't help his own cause early on with some immensely foolish actions, like threatening federal agents in a video posted to YouTube, but there were serious concerns about how the government had twisted what Brown had actually done in a way that could be used against all kinds of journalists.

While the feds eventually dismissed the key "linking" claim (equating linking to trafficking), they still got Brown to agree to a plea deal on other charges. After many months, he was finally sentenced today to 63 months in prison, more than double the 30 months that his lawyers asked for (30 months being the time he's already served in prison). He also has to pay $890,000 in restitution. For linking to some files he didn't have anything to do with leaking.

Before the sentencing, Brown made a statement to the judge that is well worth reading. He admits that the threatening videos were "idiotic" and apologizes for it, but delves more deeply into what's really at stake in his case. Here's just a tiny bit:

Every journalist in the United States is put at risk by the novel, and sometimes even radical, claims that the government has introduced in the course of the sentencing process. The government asserts that I am not a journalist and thus unable to claim the First Amendment protections guaranteed to those engaged in information-gathering activities. Your Honor, I’ve been employed as a journalist for much of my adult life, I’ve written for dozens of magazines and newspapers, and I’m the author of two published and critically-acclaimed books of expository non-fiction. Your Honor has received letters from editors who have published my journalistic work, as well as from award-winning journalists such as Glenn Greenwald, who note that they have used that work in their own articles. If I am not a journalist, then there are many, many people out there who are also not journalists, without being aware of it, and who are thus as much at risk as I am.

Your Honor, it would be one thing if the government were putting forth some sort of standard by which journalists could be defined. They have not put forth such a standard. Their assertion rests on the fact that despite having referred to myself as a journalist hundreds of times, I at one point rejected that term, much in the same way that someone running for office might reject the term “politician”. Now, if the government is introducing a new standard whereby anyone who once denies being a particular thing is no longer that thing in any legal sense, then that would be at least a firm and knowable criteria. But that’s not what the government is doing in this case. Consider, for instance, that I have denied being a spokesperson for Anonymous hundreds of times, both in public and private, ever since the press began calling me that in the beginning of 2011. So on a couple of occasions when I contacted executives of contracting firms like Booz Allen Hamilton in the wake of revelations that they’d been spying on my associates and me for reasons that we were naturally rather anxious to determine, I did indeed pretend to be such an actual official spokesman for Anonymous, because I wanted to encourage these people to talk to me. Which they did.

Of course, I have explained this many, many times, and the government itself knows this, even if they’ve since claimed otherwise. In the September 13th criminal complaint filed against me, the FBI itself acknowledges that I do not claim any official role within Anonymous. Likewise, in last month’s hearing, the prosecutor accidentally slipped and referred to me as a journalist, even after having previously found it necessary to deny me that title. But, there you have it. Deny being a spokesperson for Anonymous hundreds of times, and you’re still a spokesperson for Anonymous. Deny being a journalist once or twice, and you’re not a journalist. What conclusion can one draw from this sort of reasoning other than that you are whatever the FBI finds it convenient for you to be at any given moment. This is not the “rule of law”, Your Honor, it is the “rule of law enforcement”, and it is very dangerous.

This is a very dangerous ruling for those who believe in freedom of the press. Rulings like this put anyone reporting on any hacked or leaked info at risk. While some don't like it, reporters need to be free to report on things, from the Stratfor documents to the Sony Hack documents to the Snowden revelations. A sentence like this puts a massive chill over journalism and the First Amendment in general.

Raise your hand if you trust Alabama Republican legislative leaders to define "legitimate journalism" in Alabama. Well, they're doing it anyway. Tuscaloosa Rep. Chris England took to Facebook to post a list of criteria that reporters will have to meet if they're to receive press credentials & be allowed inside the press rooms at the State House.

No one's raising their hands (except maybe the legislators) but that's not going to stop the legislature from defining "journalist" to fit its narrow standards. Here's Alabama's proposed official press credential policy.

1. A media representative shall be admitted to the floors of the House or Senate or allowed press privileges if the person is a salaried staff correspondent, reporter, or photographer employed by any of the following:

a. The news department of a federally licensed television or radio station, or the news department of a network providing coverage to television and radio stations. b. A newspaper of general circulation providing print or online editions for the dissemination of news of a general character, which has a bona fide subscription list of paying subscribers, and has been established, printed, and published at regular intervals. c. A wire service providing news service to newspapers, television, or radio stations as referred to above. d. Internet news services and bloggers associated with any of the previously listed categories.

2. Applicants seeking press credentials are required to submit documentation from their employer certifying that they are engaged primarily in reporting the sessions of the legislature.

The applicant must also certify that, with the exception of the Alabama Press Association and the Alabama Broadcasters Association, and the exception of receiving advertising revenue, they have no affiliation with any person, firm, corporation, association, or political party that attempts to influence legislative issues or lobby members of the Alabama Legislature.

3. Applicants unable to comply with the aforementioned certification requirement will not be issued legislative press credentials, but will still be free to cover sessions of the Alabama Legislature from the public galleries located on the sixth and eighth floors.

Any person who is discovered to have misrepresented themselves to obtain legislative press credentials will have their credentials denied or revoked.

Notice how much emphasis is placed on being paid and working for incumbent media outlets. This wording gives incumbent media preference over upstarts and quite possibly means those whose platforms aren't instantly recognizable by legislators will be deemed "non-press" and denied access.

Also notice how much information journalists will need to provide in exchange for a press pass. If you want to cover the Alabama legislature, you'll need to prove that you're a salaried employee of one of the entities on the "approved" list. Maybe something on official letterhead will be good enough for the legislature. Or maybe it's suggesting you bring a pay stub or two with you and a portfolio of your work (... and financial statements verifying your employer has subscribers, still in business, etc...). And God forbid you hold a part-time job with any "person, firm, corporation or association" that "attempts to influence legislative issues," but still attempt to "certify" that you have no connection to myriad entities listed in the "forbidden connections" section. You can kiss your credentials goodbye. And this part of the list about forbidden connections -- "or political party" -- suggests journalists are better off not registering to vote.

Beyond that, there's the weird stipulation that those receiving press credentials will need to be "engaged primarily in reporting the sessions of the legislature. (And be able to prove it.) Here's Left in Alabama's take on that:

Other than the Montgomery Advertiser, what news outlets have reporters who "primarily" report on the legislature? Staff is stretched so thin that a reporter might cover a legislative story in the morning, a car wreck over lunch, a heartwarming pet story in the afternoon, and then do a stand up about Mike Hubbard's arrest on corruption charges for the evening news broadcast. Does that count?

Now, Alabama legislators can pretend that these restrictions are in place to prevent the press gallery from becoming bathrobe blogger central, but all it's really there for is to ensure as many potential journalists as possible are locked out. It also locks out nonprofit organizations that perform journalism, as one commenter on England's Facebook page points out.

While I seriously couldn't care less about being in the press room or having "credentials", it would certainly leave the Alabama School Connection out, as I am a nonprofit news organization, online only. I will not ever have "paying subscribers". There is a huge world of nonprofit news organizations that wouldn't meet any of those criteria…

England states on his page that he's against these proposed rules. Good for him. Now, that all may change, thanks to certain members of the Alabama legislature. If it does, many journalists will be locked out, and the First Amendment will be worse off for it.

from the gags-help-communication dept

There's a trend afoot among some website editors to kill the comment section, then proclaim that they've courageously decided to reduce conversation to help improve conversation. It's a random bit of logic we've noted doesn't make any sense if you're interested in actually fostering a local community, and care about not having all conversation outsourced to Facebook. The pretense that you're killing comments because you're nobly trying to further human communications (and not, say, because your website is cheap and lazy) is also disingenuous. That hasn't stopped ReCode, Reuters, Popular Science, or some newspapers from killing comments in order to push humans to the next evolutionary level (or whatever).

This week, yet another website joined the "comments are evil and have no use" parade. In a now familiar treatise, TheWeek.com announced that while editors "truly do value your opinions," you're no longer going to be allowed to express them on their website. According to TheWeek, this nuclear option was required because comments are just filled with horrible, nasty people:

"There was a time — not so long ago! — when the comments sections of news and opinion sites were not only the best place to host these conversations, they were the only place. That is no longer the case. Too often, the comments sections of news sites are hijacked by a small group of pseudonymous commenters who replace smart, thoughtful dialogue with vitriolic personal insults and rote exchanges of partisan acrimony. This small but outspoken group does a disservice to the many intelligent, open-minded people who seek a fair and respectful exchange of ideas in the comments sections of news sites."

Of course if news outlets spent a few minutes actually moderating the comments section and treating it like a valuable community resource (instead of oh, a drunk uncle with a bad goiter and nasty halitosis at your wedding), that probably wouldn't be as big of a problem.

"One surprisingly easy thing they found that brought civil, relevant comments: the presence of a recognized reporter wading into the comments.

Seventy different political posts were randomly either left to their own wild devices, engaged by an unidentified staffer from the station, or engaged by a prominent political reporter. When the reporter showed up, “incivility decreased by 17 percent and people were 15 percent more likely to use evidence in their comments on the subject matter,” according to the study."

Note by "recognized" the paper just means somebody relatively recognized from the outlet or the reporter themselves. They also tried their very best to actually define "incivility" as a quantifiable metric:

"To develop a list of characteristics that signaled incivility, we drew from past research on the characteristics of uncivil discourse (Papacharissi, 2004; Sobieraj & Berry, 2011). To be coded as uncivil, the comment needed to include one or more of the following attributes: (1) Obscene language / vulgarity (e.g. “A@$#***les”), (2) Insulting language / name calling (e.g. “you idiots”), (3) Ideologically extreme language (e.g. “Liberal potheads”), (4) Stereotyping (e.g. “Deport them illegals”), or (5) An exaggerated argument (e.g. "It’s very easy to solve all of this just keep your legs closed if you don’t want a baby.”). Comments containing any one of these characteristics were coded as uncivil."

Having been a blogger (and a moderator of one of the Internet's larger tech forums) for more than fifteen years, I can anecdotally note that even the biggest jackasses generally do dial back the antisocial angst when you calmly and politely talk to them (whether I've always been able to do that every day without piling on antisocial angst of my own is another discussion). But between actual involvement and reasonable moderation, it's not hard to reclaim a comment section from the encroaching, troll-induced apocalyptic jungle. What websites that close comment sections are doing is telling everyone they don't give quite enough of a shit to work to improve them. Proceeding to proclaim this is just because you really love conversation informs that same community you also think they're kind of stupid.

from the goddamn-nails-everywhere!-hand-me-my-hammer! dept

Sony's lawyer, David Boies, recently made an attempt to silence media outlets' coverage of leaked Sony documents. Without stating any legal basis for Sony's demands, Boies' letter ordered journalists to stop reporting on the leaked documents, destroy whatever they had in their possession (as if that effort would make any difference…) and sit on their hands until they received further instructions on what was/wasn't of "public interest" from the studio itself.

Needless to say, the only thing this cease-and-desist managed to do was increase the amount of criticism heaped on Sony's head. Boies presumably is still employed by Sony, as are whichever executives signed off on this suicidal move.

Last week, Elliott Ingram, a copyright specialist who works with Sony in the United Kingdom, reached out to warn him that if he did not delete the posts, the company would have to ask Twitter to do it for them.

This polite person-to-person request from Ingram was ignored by Broeksmit, despite the fact that it (politely) bandied about a number of legal terms for scariness' sake, like "trade secrets," "copyright" and "privacy laws." Broeksmit says he ignored it because it "didn't come from a Sony Pictures email account."

Because Broeksmit failed to cave, the threats have escalated. Gone is the cheery and accommodating British politeness. In its place is a rehash of the threatening letter sent to journalists last week, full of demands and excess capital letters ("Stolen Information," etc.)

And once again, one of the studio's lawyers (Sean Jaquez) asks for an ultimately meaningless gesture as a sign of compliance/good faith.

The email asks Broeksmit to delete his tweets and to “arrange for and supervise the destruction of all copies of the Stolen Information in your possession [and to] confirm that such restriction has been completed.”

Sure, Sony doesn't actually care if any deletion actually occurs. (Well, it cares a little.) What it wants is a leak-free future. But Broeksmit isn't caving, even if his grasp on the legality of his sharing might be a bit shaky.

“I’m not with a newspaper and I think I can get away with it,” he said. “It’s important—the reason is it’s so new and different from anything we’ve seen before. This is a billion dollar company being made bare to the public. It’s crazy I have these emails, and it’s fascinating to learn how these companies work.”

Confidence is a great thing, but a private citizen generally finds his/her rights to be a bit diminished as compared to the press, rather than vice versa.

Ultimately, it appears Sony will have to talk Twitter into removal of these tweets rather than going straight to the source. It made two pitches and missed with both. Now, it remains to be seen whether Twitter will view Broeksmit's document screenshots are actually infringing on Sony's copyrighted material. As of now, the disputed tweets are still up… and Sony's reputation is still sliding in a downward direction.

from the wait,-what?!? dept

We've written before about Jay Rosen's excellent explanation of "the church of the savvy," in which political reporters seem more focused on describing the "horse race" aspect of politics rather than the truth. It's the old story in which the press ignores, say, a really good concept because "politicians won't support it." A key giveaway for a "savvy" post is to focus on "what the polls say" rather than what reality says. That doesn't mean that polls are never useful or shouldn't be reported on -- but when they get in the way of the actual story, it can make for ridiculous results.

And finally, a Washington Post-ABC News poll released Tuesday morning shows people say 53-31 that the CIA's program did "produce important information that could not have been obtained any other way."

Now, an actual reporter might point out that (1) these Americans are wrong and (2) that it doesn't fucking matter whether or not torture works -- it's still reprehensible. But, instead, Blake concludes that, boy, this sure is a loss for the Democrats:

And as long as people believe torturing terrorism detainees leads to valuable information, the CIA's interrogation program — and torture in general — are unlikely to face a major public backlash.

This is the unhappy reality being confronted by Democrats who had hoped to make a splash with the CIA report.

So the only "reality" in the article is the fact that the public's depraved position is bad for one particular party. Apparently, it's not bad for "humanity" or common sense or human rights or America. It's just bad for one party? Rather than actually educating the public -- which reporters are supposed to be doing -- the focus is just on what these polling numbers mean for torture -- presented in the same way one might discuss the polling numbers for a regular election.

This isn't a political horse race we're talking about here. This is about a fundamental issue of human rights, and the press is acting like all that matters is torture's polling numbers?

from the that-one-time-when-a-major-corporation-shot-itself-in-the-face dept

In a sharply worded letter sent to news organizations, including The New York Times, David Boies, a lawyer for Sony, characterized the documents posted online as “stolen information” and demanded that they be avoided, and destroyed if they had already been downloaded or otherwise acquired.

The studio “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading or making any use” of the information, Mr. Boies wrote in a three-page letter sent Sunday morning to the legal departments of media organizations.

Somebody approved this -- someone higher up than David Boies. And that someone should probably step down and concentrate on staining his yacht deck or seeking to be nominated in the next Congressional election, or whatever it is studio execs do when they've outlived their usefulness.

The letter's wording [pdf link] makes it sound as though the press outlets are doing something illegal (mainly through repetitive use of the word "stolen") but is careful never to make that actual claim. It tries to bluster its way towards legitimacy by inserting a list of "in case of 'stolen' information" requests (worded to look like legal demands) into the letter.

As soon as you suspect that you may have possession of any of the Stolen Information*, we ask that you

(1) notify us using the contact information provided below;

(2) take all reasonable actions to prevent your company and any of your employees, independent contractors, agents, consultants, or anyone who may have access to your files from examining, copying, disseminating, distributing, publishing, downloading,uploading, or making any other use of the Stolen Information;

(3) arrange for and supervise the destruction of all copies of the Stolen Information in your possession or under your control, particularly information protected under US. and foreign legal doctrines protecting attorney-client privileged communications, attorney work product, and related privileges and protections, as well as private financial and other confidential information and communications of current and former personnel and others, confidential personnel data, intellectual property, trade secrets andother business secrets and related communications; and

(4) confirm that such destruction has been completed.**

In addition, if you have provided the Stolen Information to anyone outside of your company, we ask that you provide them with a copy of this letter, and request the destruction of the Stolen Information by the recipient.

[*"Stolen Information" being much more sensitive than your garden variety, lower-case "stolen information," obvs.] [**"Recycle Bin had little pieces of paper in it, but now appears to be empty."]

I imagine the contact information provided is swiftly being bombarded with ridicule, fake tips, more ridicule, more fake tips and pictures of empty Recycle Bins.

The only threat in the document (other than the overall tone) is this:

If you do not comply with this request, and the Stolen Information is used or disseminated by you in any manner, SPE will have no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you, including any damages or loss to SPE or others, and including, but not limited to, any loss of value of intellectual property and trade secrets resulting from your actions.

In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception.

The only mitigating factor is the relative worth of the "stolen information" to the public interest. Much of what's been covered likely isn't and much of what's contained in the files that hasn't been disseminated by press outlets definitely isn't. But there are some revelations that are definitely matters of public interest, not the least of which is the MPAA's plan to throw money at elected officials in exchange for some Google-hassling.

Sony appears to be in full panic mode, but it's tough to sympathize with a corporation that has been hacked 56 times in 12 years but still keeps passwords in a folder labeled "Passwords." This latest move won't earn it anything more than an internetload of derision.